Tag Archives: 2nd amendment

There’s Gonna Be A Gun Fight – Update for July 3, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREMES TO REVIEW RAHIMI

Recall that last February, the 5th Circuit held in United States v. Rahimi that the Supreme Court’s June 2022 New York State Rifle & Pistol Ass’n v. Bruen decision meant that 18 USC § 922(g)(8), “a specific statute that prohibits people subject to a domestic violence restraining order from possessing a gun” violated the 2nd Amendment.

gun160711Bruen held that when the 2nd Amendment’s plain text covers an individual’s conduct, “the Constitution presumptively protects that conduct.” The government must then prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen, the 5th Circuit said, “clearly fundamentally changed our analysis of laws that implicate the 2nd Amendment… rendering our prior precedent obsolete.”

Zackey Rahimi was under a domestic protection order for stalking an ex-girlfriend when he ran amok in December 2020, shooting up houses, blasting away at bad drivers, firing at a police car, and even squeezing off five rounds into the air when Whataburger declined his credit card.

The government argued that the 2nd Amendment applies to only “law-abiding, responsible citizens,” neither of which Zack was. But the 5th held that the government had not shown that § 922(g)(8)’s restriction of 2nd Amendment right “fits within our Nation’s historical tradition of firearm regulation… As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the 2nd Amendment.”

The government wasted no time filing a petition asking SCOTUS to grant certiorari, even asking the high court to waive its traditional 14-day period between the filing of a reply brief and deciding whether to grant review. On Friday the last day of the Supreme Court’s term before its four-month break, the Court announced it would review Rahimi.

whataburger230703The petition for certiorari argued that “[g]overnments have long disarmed individuals who pose a threat to the safety of others” and that the law “falls comfortably within that tradition,” and warned that allowing the 5th Circuit’s decision to stand would “threaten[] grave harms for victims of domestic violence.”

Zack urged the high court to deny review, calling the decision a “faithful application of Bruen.” Bruen has only been law for a year, he argued, and the lower courts are “now hard at work applying the new historical framework and re[e]valuating firearm restrictions that were previously upheld” before Bruen. Zack suggested that additional lower courts should interpret federal and state gun laws in light of Bruen before the Supreme Court weighs in.

The case will likely be argued in the fall, with a decision to follow sometime next year, and may well be the signature criminal law case of October Term 2023.

United States v. Rahimi, Case No 21-11001, 61 F.4th 443 (5th Cir. Mar. 2, 2023) (amended decision), certiorari granted (Case No. 22-915), June 30, 2023

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. —, 142 SCt. 2111, 213 Led 2d 387 (2022)

SCOTUSBlog, Justices take up major Second Amendment dispute (June 30, 2023)

– Thomas L. Root

Another Circuit to Enter the Post-Bruen Fray – Update for June 29, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

7TH REMANDS 2ND AMENDMENT GUN POSSESSION CASE IN WAKE OF BRUEN

iloveguns221018Patrick Atkinson was convicted 25 years ago of federal mail fraud. After maintaining an otherwise clean record for a generation, he wanted a gun. But because 18 USC § 922(g)(1) bars gun possession for anyone convicted of “a crime punishable by imprisonment for a term exceeding one year,” he could not buy one. He sued seeking to have § 922(g)(1) declared unconstitutional as applied to him.

Relying on 7th Circuit precedent from prior to last summer’s New York State Rifle & Pistol Ass’n v. Bruen decision, the district court dismissed Pat’s case. He appealed.

Last week, the 7th Circuit sent it back for consideration in light of Bruen’s holding.

“Bruen announced a new framework for analyzing restrictions on the possession of firearms,” the Circuit ruled. “The new approach anchors itself exclusively in the 2nd Amendment’s text and the pertinent history of firearms regulation, with the government bearing the burden of “affirmatively proving that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms… The parties’ briefing on appeal only scratches the surface of the historical analysis now required by Bruen. In these circumstances, we think the best course is to remand to allow the district court to undertake the Bruen analysis in the first instance.”

gunpermit230629Two recent decisions have considered the constitutionality of the felon-in-possession statute. On June 8, the 3rd Circuit held the statute unconstitutional in Range v. Attorney General. Six days before that, the 8th Circuit ruled the opposite way in United States v. Jackson.

Atkinson v. Garland, Case No. 22-1557, 2023 U.S. App, LEXIS 15357 (7th Cir., June 20, 2023)

– Thomas L. Root

3rd Circuit Sharply Limits § 922(g)(1) ‘Felon-In-Possession’ – Update for June 8, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

A DAY AT THE ‘RANGE’

manyguns190423In a case with substantial implications for gun possession rights, the United States Court of Appeals for the 3rd Circuit ruled Tuesday that 18 USC § 922(g)(1) – the so-called felon-in-possession statute – is unconstitutional as applied to a man convicted of a nonviolent crime over 25 years ago.

The en banc decision ruled 11-4 that Bryan Range – convicted of 62 Pa. Stat. Ann. § 481(a) back in 1995 for falsely stating his family’s income to qualify for food stamps – nevertheless “remains one of ‘the people’ protected by the 2nd Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms.”

Although 18 USC § 922(g)(1) is often described in shorthand as prohibiting people convicted of felonies from possessing guns, it is more nuanced than that. In fact, it prohibits people convicted of a “crime punishable by imprisonment for a term exceeding one year” from firearms and ammo possession (and some crimes are excluded in 18 USC § 921(a)(20) from the calculus).

Under Pennsylvania law, Bryan’s crime was a misdemeanor, one for which he served probation only. But it was punishable by up to five years imprisonment, regardless of what the legislature called. The maximum statutory penalty is what matters to § 922(g)(1), and that theoretical max prohibited Bryan from gun possession.

After Bryan tried and failed to buy a shotgun, he sued in federal court for a declaratory judgment that § 922(g)(1) violated his 2nd Amendment rights. The district court disagreed, and a three-judge 3rd Circuit panel upheld that denial last November. But then, a majority of current 3rd Circuit appellate judges voted last January to hear the case en banc.

gun160711Last June, the Supreme Court changed the 2nd Amendment landscape in New York State Rifle & Pistol Association v. Bruen. In that decision, SCOTUS held “that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct… Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the 2nd Amendment’s ‘unqualified command’.”

The 3rd ruled that the Government had failed to show that “our Republic has a longstanding history and tradition of depriving people like Range of their firearms.” Judge Thomas Hardiman (who was in the running for the Supreme Court seat now occupied by Neil Gorsuch), wrote for the majority. He noted in a footnote that “[e]ven rebels who took part in the 1787 tax uprising in Massachusetts known as Shays’ Rebellion could generally get their weapons back after three years,” and concluded that punishing Bryan Range by revoking his gun rights for an offense that did not involve violence gave lawmakers too much power “to manipulate the 2nd Amendment.” Thus, “§ 922(g)(1) cannot constitutionally strip him of his 2nd Amendment rights.”

Judge Hardiman called the ruling a narrow one, but how that could be so is questionable. Dissenting Judge Cheryl Ann Krause, an Obama appointee to the 3rd Circuit, complained that while it “describes itself as limited ‘to Range’s situation,’ today’s opinion is not designated non-precedential as appropriate for a unique individual case, but has precedential status, necessarily reaching beyond the particular facts presented. It is also telling that it tracks precisely the 5th Circuit’s deeply disturbing opinion in United States v. Rahimi, which, finding no precise historical analogue, struck down as unconstitutional the ban on gun possession by domestic abusers.”

(Note: Rahimi struck down as unconstitutional the ban on gun possession by people subject to domestic violence protection orders, which can be and often are entered without hearings and without counsel. It’s a stretch – if not outright disingenuous – to call someone subject to such an order a “domestic abuser”).

Dissenting Judge Patty Shwartz complained that “[w]hile my colleagues state that their opinion is narrow, the analytical framework they have applied to reach their conclusion renders most, if not all, felon bans unconstitutional.”

gunfreezone170330The New York Times said “Judge Hardiman’s opinion directly addressed many of the core issues raised in the Supreme Court’s decision last June, in expansive language that seemed to suggest that the constitutional foundation of many gun laws was eroding.”

The Range decision created an immediate Circuit split due to last week’s 8th Circuit United States v. Jackson decision, which I wrote about a few days ago. But whether the Government seeks to rush Range to the Supreme Court like it has done with Rahimi is uncertain. Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman is not convinced the Solicitor General would find Range a good certiorari candidate:

Though the federal government would normally seek certiorari review of this kind of ruling, I wonder if the feds might seek to urge the Supreme Court to take up a different case raising the same issue. Bryan Range’s case seems particularly sympathetic, as he was only convicted nearly three decades ago of making a false statement to obtain food stamps in violation of Pennsylvania law. But, whatever the vehicle, the constitutionality of Section 922(g)(1) is clearly one (of a number of) post-Bruen 2nd Amendment issues the Supreme Court is going to have to confront.

Range v. AG United States, Case No. 21-2835, 2023 U.S. App. LEXIS 13972 (3d Cir. June 6, 2023)

New York Times, Man Convicted of Nonviolent Crime Can Own Gun, U.S. Court Rules (June 6, 2023)

Associated Press, US appeals court says people convicted of nonviolent offenses shouldn’t face lifetime gun ban (June 6, 2023)

United States v. Jackson, Case No 22-2870, 2023 U.S.App. LEXIS 13635 (8th Cir. June 2, 2023)

Sentencing Law and Policy, En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender (June 6, 2023)

– Thomas L. Root